https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9400

SYI v AAA (Family Appeal E099 of 2025) [2026] KEHC 9400 (KLR) (Family) (24 June 2026) (Ruling) Neutral citation: [2026] KEHC 9400 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Family Appeal E099 of 2025 CJ Kendagor, J June 24, 2026 Between SYI Applicant and AAA Respondent (Being an application for stay of proceedings and stay of execution of the orders issued on 3rd June, 2025 by Hon. E.S. Olwande in Chief Magistrates Family Court MC FOS/E009 of 2024) Ruling 1.The marriage between the parties herein was dissolved, and the Respondent (A.A.A) in this appeal filed for division of matrimonial property in respect of the property Apartment 5B, Hinna Apartments, South C, Nairobi at the Chief Magistrates Family Court. The Appellant (S.Y.I.) is the Respondent in the lower Court matter. 2.Simultaneously, the Respondent also filed a notice of motion application dated 5th July, 2025 in which she asked the trial Court to preserve the property and to have the rental income deposited in a joint account pending the hearing and determination of the case. 3.The trial court delivered a ruling on 3rd June, 2025, in which it issued the following orders to be in force pending the hearing and determination of the suit;i.A temporary injunction restraining the Appellant from collecting and or utilizing the rent from the suit property for his sole benefit;ii.An order directing the tenants occupying the suit property to deposit rent into the joint interest-earning account to be opened by both parties;iii.A seal-off order preserving the property. 4.The Appellant, aggrieved by the orders, filed the present appeal and, simultaneously, the notice of motion application dated 16th October, 2025 that is the subject of this ruling. The application seeks the following orders;i.Spentii.Spentiii.Spentiv.That pending the hearing and determination of the appeal, the honourable court be pleased to issue an order of stay of proceedings of MCFOS E009 of 2024;v.That pending the hearing and determination of the appeal, the honourable court be pleased to issue a stay of execution of the ruling and orders issued on 3rd June, 2026.vi.Costs of the application. The Appellant’s case: 5.The application is supported by an affidavit dated the same day. Additionally, the Appellant filed written submissions dated 23rd May, 2026. He argued that he will incur significant loss if the stay orders are not granted, specifically the loss of the suit property. He argued that he financed the purchase of the property solely through loans and that he depends on the rent to repay these loans. He stated that if the rental income is redirected, there is a risk that the property could be sold to recover the borrowed funds. 6.He further stated that he is willing to abide by any security the Court may order and asks the Court to consider that the title deed to the suit property is held in the names of both parties, which ensures that he, on his own, cannot dispose of the apartment without the knowledge or involvement of the Respondent. He argued that this provides the Respondent with security and comfort that he cannot transfer ownership of the apartment while the parties litigate over it. The Respondent’s case 7.The Respondent filed a replying affidavit dated 10th November, 2025 in opposition. She also filed submissions dated 1st April, 2026. 8.The Respondent states that the orders issued were fair while awaiting the hearing and determination of the case. She contends that it would be unjust for the Appellant to collect and use all the rent from the jointly owned property during this period. 9.She argued that the joint registration of the parties over the property serves as prima facie evidence that both have equal shares and beneficial interests. She asked the Court to consider the interests of both parties when deciding on the stay of execution and proceedings. Analysis and determination 10.Having considered the application herein, the response thereto, and the submissions by the parties and the authorities relied on, the issue for determination is whether the Appellant has met the threshold for the grant of orders of stay of execution and stay of proceedings pending appeal. 11.Under Order 42, Rule 6 of the Civil Procedure Rules, an appeal does not automatically stay the execution of a decree or order, nor does it automatically stay proceedings in the case. An Applicant must fulfil the requirements. 12.For a grant of stay of execution, an Applicant must fulfil the following requirements;a.Demonstrate that substantial loss will be suffered if the stay is not granted;b.Security for due performance of the decree/order as the court may order;c.Unreasonable delay in filing of the Application. 13.Whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of justice. The main question is whether it is in the interest of justice to order a stay of proceedings. 14.In this case, the property in question is jointly registered under the names of both parties. At the interlocutory stage, the trial Court has not delved into the substantive issues regarding each party’s contributions to the property. Instead, the primary focus centres on determining which interim orders would be appropriate to safeguard the property and the income derived from it pending the hearing and determination. 15.Similarly, this Court has restrained itself from examining substantive issues for consideration that are for the main appeal as outlined in the memorandum of appeal. 16.On the requirement for proof of substantial loss, the Appellant states that if the rental income is redirected, there is a risk that the property could be sold to recover the borrowed funds. The details provided in the loan documentation annexures SYI 3 do not reference the asset, leaving a gap in the relationship between the two that cannot be examined in depth at this interlocutory stage. Without evidence linking the house to the mentioned loans, the substantial loss alleged remains speculative. 17.The other requirement, security of performance, serves to ensure that a successful party can reclaim the awarded sum or property in the event that the appeal is unsuccessful, thereby shielding them from potential prejudice while the Appellant exercises their right to appeal. In this case, the Appellant’s stand that he intends to utilize the rental income for the repayment of loans, which have not been proven at this stage to have a direct connection to the property in question, poses a risk of prejudice to the Respondent. 18.This jeopardy arises from the likelihood that such funds may be expended contrary to the interim order requiring that the rental income be deposited into a joint interest earning account. At the stage of the application for stay of execution pending appeal, the court must evaluate the implications of granting or denying the stay, considering the potential impact on both the Appellant and the Respondent, and strive to balance the scales of justice to protect the rights and interests of both parties. 19.In considering the requirement for the filing of such an application without unreasonable delays, it is imperative to scrutinize the timeline in relation to the specific orders that required compliance. The directive to deposit funds into a joint interest earning account requires that procedural steps be taken to open the account and that, upon opening, the parties promptly inform the tenants of the order to deposit the rental payments into this account. 20.The Ruling and Orders that are now being contested were issued on 3rd June, 2025. However, the Appellant did not file their current application until 16th October, 2025, an interval of nearly four months. This raises concerns, especially since the order involves a monetary decree requiring immediate deposit of the rental income into the designated account. Given these circumstances, I find the four-month delay to be unjustifiable. 21.The Appellant has not met the requirements for stay of execution. 22.In considering the prayer for a stay of proceedings pending appeal, it is well established that a stay of proceedings is a special remedy, reserved for situations where there is a significant risk of injustice if the proceedings are allowed to continue. 23.It is important to note that the case before the lower Court concerning the division of matrimonial property is yet to be heard and determined. The current appeal pertains solely to the interim orders regarding the rental income generated from the property in question. The appeal will therefore not be rendered nugatory if the order of stay of proceedings is not granted. 24.As the Appellant has not presented any unique or compelling factors in this case, I find that an order to stay the lower court proceedings is not appropriate. 25.The Notice of Motion application dated 16th October, 2026 seeking orders for stay of execution and stay of proceedings is not merited and is hereby dismissed. 26.Costs shall abide by the outcome of the appeal. 27.The Appellant is directed to file the Record of Appeal within 30 days. 28.Orders accordingly. DATED AND DELIVERED AT NAIROBI ON THIS 24TH DAY OF JUNE, 2026.…………………..C. KENDAGORJUDGEIn the presence of:Court Assistant: Beryl